A complaint under Section 85(e) of the Employees State Insurance Act, 1948, is not maintainable against a person who is not the principal employer as defined under Section 2(17) of the Act.

Harphul Singh Brar, J.

1. This judgment of mine will dispose of Criminal Miscellaneous Nos.843-M and 846-M of 1992, as a common question of fact is involved in these two petitions. However, for facility of reference, facts have been taken from the Criminal Miscellaneous No.843-M of 1992.

2. This is a petition under Sec.482 of the Code of Criminal Procedure for the quashment of complaint dated October 27, 1989, under Sec.85 (e)of the Employees State Insurance Act, 1948 (for short "the Act"), pending in the Court of Chief Judicial Magistrate, Sonepat.

3. The petitioner states in his petition that he has been accused to be the principal employer of M/s. Kanishka Tyres and Tubes (Pvt.) Ltd. , O/1, Industrial Area, Sonepat, in terms of Sec.2 (17) of the Act. It is alleged in the complaint that the accused has/have failed to submit the returns of contributions as required under Sections 39, 40 (1) and 43 of the Act read with Regulation 26 of the Employees State Insurance (General) Regulations, 1950 (hereinafter referred to as the 1950 Regulations"), for the contribution period October 1, 1988 to March 31, 1989 along with interest, as specified in para 1 (a) and (b) of the First Schedule to the Act, which is an offence punishable under Sec.85 (e) of the Act. The petitioner slated that he is not the principal employer, but is a Chartered Accountant and works as Accounts Consultant to a number of establishments including M/s. Kanishka Tyres and Tubes (Pvt.) Ltd. , Sonepat, and neither is he the in-charge of , nor is he responsible for, the conduct of the business of the company. This is the basic factual matrix of the case on which his learned counsel wants this Court to quash the complaint, Annexure P1, as also the proceedings consequent thereto.

4. In a nutshell, learned counsel for the petitioner stated that a complaint under Sec.85 (e) of the Act is not maintainable against the petitioner, as he is not the principal employer of the company, because he does not fall within the meaning of "principal employer" as defined by Sec.2 (17) of the Act. He submits that a perusal of his appointment letter issued by M/s. Kanishka Tyres and Tubes (Pvt.) Ltd. , O/1, Industrial Area, Sonepat (Haryana), copy Annexure P-2, would reveal that he was appointed as a consultant retainer and that during the tenure of his appointment as such or any other such appointment, no liability of any kind that may arise shall devolve upon him. Learned counsel quotes before me another instance by referring to the letter written by M/s. Kanishka Tyres and Tubes (Pvt.) Ltd. , Sonepat, to the Deputy Director, Employees State Insurance Corporation, Sector 16, Panchdeep Building, Faridabad, Annexure P-3, that the petitioner was never and is not the principal employer of the company, rather Pardeep Nagpal was the occupier and Islam Ansari was the manager of the factory. He, thus, submits that the filing of complaint against the petitioner and its continuation before the Chief Judicial Magistrate is an abuse of the process of the Court.

5. Notice was issued in this petition to the; respondent-Insurance Inspector, Employees State Insurance Corporation, D-7, Prem Nagar, Sonepat.

6. Mr. Kapur, learned counsel for the respondent did not choose to file any reply in this case.

7. I have heard learned counsel for the parties at length and have given my anxious thought to the matter. Sec.85 of the Act provides punishment for failure to pay contributions payable under the Act. Sec.2, Sub-section (4), defines "contribution" as under: "contribution means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act," Sec.2 (17) of the Act is in the following terms:

"principal employer means- (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a